CHAPTER VIII. CONTRACTS IN RELATION TO MARRIAGE. § CONTRACTS IN UNREASONABLE RESTRAINT OF MARRIAGE are void, as being contrary to public policy. For example. If Miss Jones were, in consideration of an annuity paid by Mr. Smith, to covenant with him, that she would never marry anyone but Mr. Robinson, such a contract would be void. But if she were to covenant that, so long as the annuity were paid she would not marry Mr. Brown, such a contract would not be illegal. 8 MARRIAGE BROKERAGE CONTRACTs are void, as being contrary to public policy. Illustration. The Duke of Hamilton, being anxious to marry the Lady Gerard, was induced by her guardian to promise to give a release, within two days after the marriage, of all accounts of the mesne profits of an estate belonging to the young lady. The marriage took place, and on the application of the husband, the Court of Chancery set the agreement aside, as void. (e) A FRAUDULENT REPRESENTATION BY A THIRD PARTY made to bring about a marriage, will estop him from disputing, or denying the truth of, such representation, after the marriage has taken place. Illustration. Moses Montefiori, in order to promote his brother Joseph's marriage, gave him a note for a large sum of money, as balance of an account between them though, really, there was no such balance existing at all. The marriage was carried out, and Moses then demanded (e) Hamilton v. Mohun, 1 Salk. 158, ; back the note, as having been given without consideration; but it was held, that he could not take advantage of his own fraud, and that Joseph, though in collusion with him, was entitled to the note. (a) § A PROMISE IN CONSIDERATION OF MARRIAGE (other than the marriage contract itself) must be in writing (see ante, p. 41.) [NOTE. The performance of the ceremony is no such "part performance" as to satisfy the Statute of Frauds. Illustration. In 1852, the Rev. R. B. Caton, a widower, aged 80, proposed to Mrs. Henley, a widow, aged 60. A verbal agreement was made between them. that the husband should have the wife's property for life, paying her £80 per annum pin-money, and that she should have it after his death. It was afterwards agreed that there should be no settlement executed, but that the husband should make a will leaving the wife all her property. The marriage took place, and the husband made his will accordingly. On his death a different will was found. Mrs. Caton filed a bill against the executors, praying for a declaration in accordance with this promise, and for an account. It was held, that there being no contract in writing to that effect, she must fail, as marriage was not a part performance within the meaning of the Statute of Frauds. (b)] § OF A PROMISE TO MARRY BETWEEN PRINCIPALS. 1. It need not be in writing Unless the marriage cannot take place within a year. (c) 2. It must be, to marry within a reasonable time; otherwise it becomes a contract in unreasonable restraint of marriage, and therefore void. (a) Montefiori v. Montefiori, 1 W. Bl. 363. (b) Caton v. Caton, L. R. 1 Ch. 137, (c) 29 Car. 2, c. 3, s, 4. 3. The plaintiff, in an action for breach of promise of marriage must be corroborated by some material evidence, other than his or her own word. (d) 4. A woman may break off her engagement if the man has conducted himself in a brutal or violent manner. (e) 5. A man may break off his engagement, if subsequently to his promise he discovers that the woman was, at the time of the promise, of loose character. (f) 6. Bodily disease, rendering it dangerous or impossible for the defendant to perform the functions of matrimony, is no answer to an action for breach of promise. (g) 7. If either party has been induced to enter into a contract of marriage by a fraudulent representation, to which the other is privy, the contract is voidable. (h) § HUSBAND AND WIFE. 1. The husband may take the profits of the wife's freehold estate. But he may not convey away the estate itself, without her joining in the conveyance, and making an acknowledgment of the deed being her deed, and of her consent to its execution, before two commissioners appointed for that purpose under the "Fines and Recoveries Act, 1833." (i) 2. Marriage operates as a gift in law to the husband of all the wife's chattels real, and all her personal estate (in the absence of any settlement thereof to her separate use). 3. Also of all her choses in action. (d) 32 & 33 Vict. c. 68. s. 2. K Provided, that he reduces them into his possession. [That is, brings an action in respect of them, and obtains judgment and execution thereon. He must sue jointly with his wife, and issue execution alone.] § If he fails to reduce them into his possession during his lifetime, the property in them remains in the wife, should she survive him. 4. A wife may bind her husband by deed, if he has given her a power of attorney to execute deeds as his agent. 5. She can also bind him by a simple contract, when acting, as his agent, with his authority. For example. She may carry on a business as her husband's agent, draw, and accept bills, and buy goods in the course of such business; and bind him by all contracts, usual and necessary for the purpose. § THE AUTHORITY may be either— (i) Express, or (ii) Implied. And the law as to implied authority, which applies to other agents, applies to the wife, subject to what follows hereunder. § OF THE IMPLIED AUTHORITY TO THE WIFE TO PLEDGE THE CREDIT OF THE HUSBAND. I. WHEN THEY ARE LIVING TOGETHER There is a presumption of law that a woman living with a man, and represented by him to be his wife, has authority from him to bind him by her contracts for articles necessary and suitable to that station which he has permitted her to assume. Illustration. Clark lived with Mary Steers [who passed as, but was not, his wife], and their children and servants in his house at Kensal Green. In January, 1823, he left England for the East Indies, leaving Steers and the family at Kensal Green. During the time Clark was in England, Blades supplied certain goods to the house, on Steers' order, which were paid for by Clark; and after Clark had left, Blades continued to supply goods to Steers till August, 1825. Clark died in the East Indies in December, 1824. In an action by Blades against Clark's executor, it was held that the estate was liable for the goods supplied during Clark's absence up to the time of his death, when the implied authority was revoked. (a) THIS PRESUMPTION MAY BE REBUTTED BY THE HUSBAND SHEWING THAT HE HAS COUNTERMANDED HIS AUTHORITY. Illustration. Etherington supplied Parrott's wife with stuff, which she made up into clothes. The wife was well supplied with clothes at the time, and Parrott had warned Etherington's servant, on paying for goods previously supplied, not to serve her any more. It was held, that the husband's assent to all contracts made by his wife for necessaries must be presumed, "unless the contrary appear." That here the contrary did appear, and that the husband was not liable. (b) Although the tradesman has no notice of the revocation of the husband's authority. Illustration. Rees was a gentleman of small fortune, living with his wife at Llanelly. The wife had separate income to the amount of £65, and he allowed her £50 as well, upon which two sums she clothed herself and her six children. He distinctly told her not to pledge his credit beyond this sum, and that if she wanted more, she was to apply to him. Jolly, a draper at Bath, supplied Mrs. Rees (a) Blades v. Free, 9 B. & C. 167. (b) Etherington v. Parrott, Ld. Raymond, 1006. |